Topic: Law and Civil Liberties

The New Threats to Free Speech

In a new Policy Analysis, Cato Research Fellow Jason Kuznicki examines the ongoing threats to free speech both at home and around the world, from hate-speech laws in the United Kingdom and Canada and university speech codes in the United States, to the Cairo Declaration on Human Rights in Islam:

The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters—that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover—or create—utility monsters. We must not allow this to happen.

Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.

Read the whole thing.

How Is Sotomayor Doing?

I was one of those who opposed the nomination of Sonia Sotomayor to the Supreme Court, mainly because the pick was based on race and gender rather than merit and she was disingenuous and obfuscatory at her confirmation hearings. Well, the Court still hasn’t decided any cases argued with Justice Sotomayor on the bench – and the first term isn’t always indicative of the kind of jurist a new justice will be – but we do have some early statistics about her performance.

It turns out that, unlike her next most junior colleague, Justice Alito – who hung back early in his tenure while learning the rhythms of the Court – Justice Sotomayor has not been a shrinking violet in her questioning of advocates. Indeed, according to a National Law Journal tally, during the 13 November arguments that just concluded, she asked 146 questions (or 11.2 per case), which is even ahead of where Chief Justice Roberts was at this point in his career.  And, because Sotomayor speaks more often than her more reserved predecessor, Justice Souter, she has made a “hot” bench even hotter.

By another indicator, however, Sotomayor ranks at the bottom of the Supreme Court table: Apparently her questioning has not yet generated a single laugh (as measured by such indications in the argument transcript).  Not surprisingly, Justice Scalia leads in that department – as he long has, both in absolute and per-question terms – with the Chief being the only other justice in double figures.  Joining Sotomayor with a goose-egg so far this year are Justices Ginsburg and Thomas (who hasn’t asked a question since 2006).  If you’re curious about last year’s final standings, see here.

For what it’s worth, all this accords with the sense I’ve gotten from the handful of times I’ve been to the Court for oral argument so far this term. To my mind, Sotomayor is still acting as a Court of Appeals judge – or maybe even a district judge – asking simpler questions about the factual record or procedural history rather than the broader issues the Court tends to grapple with.  And therefore I’ll go out on a counterintuitive limb here to predict that, as Sotomayor settles into her new role, her questioning will become less frequent but more substantive.

The Remnants of “War on Terror”

Former New York City mayor Rudy Giuliani appeared on Fox News Sunday this weekend to argue against the Obama administration’s plan to try some alleged terrorists in New York courts. He did not acquit himself well.

Giuliani argued, for example, that criminal defendants aren’t tried “at the scene of the crime.” Criminal defendants are almost always tried in the jurisdictions where their crimes took place (not at the actual crime scene, of course). Giuliani’s insistence on misstating basic criminal procedure showed that he was twisting to score points against the administration. This is inappropriate political use of terrorism issues.

But Chris Wallace roasted Giuliani—with quotes from Rudy Giuliani. Of prosecuting the 1993 World Trade Center bombers, Giuliani said: “[Y]ou put terrorism on one side, you put our legal system on the other, and our legal system comes out ahead.” Giuliani said that the trial of Zacharias Moussaoui shows “that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law.”

As he did during his failed presidential campaign, Giuliani appears caught in a terror-warrior time warp. He criticized the Obama administration for eschewing the regrettable phrase “war on terror,” and he betrayed no awareness of what has dawned since 9/11 on the rest of the country: Terrorism seeks overreaction on the part of victim states. Cool, phlegmatic prosecution of terrorists deprives them of rhetorical victories that empower them by drawing others to their side.

The FISA Amendments: Behind the Scenes

I’ve been poring over the trove of documents the Electronic Frontier Foundation has obtained detailing the long process by which the FISA Amendments Act—which substantially expanded executive power to conduct sweeping surveillance with little oversight—was hammered out between Hill staffers and lawyers at the Department of Justice and intelligence agencies. The really interesting stuff, of course, is mostly redacted, and I’m only partway though the stacks, but there are a few interesting tidbits so far.

As Wired has already reported, one e-mail shows Bush officials feared that if the attorney general was given too much discretion over retroactive immunity for telecoms that aided in warrantless wiretapping, the next administration might refuse to provide it.

A couple other things stuck out for me. First, while it’s possible they’ve been released before and simply not crossed my desk, there are a series of position papers — so rife with  underlining that they look like some breathless magazine subscription pitch — circulated to Congress explaining the Bush administration’s opposition to various proposed amendments to the FAA. Among these was a proposal by Sen. Russ Feingold (D-WI) that would have barred “bulk collection” of international traffic and required that the broad new intelligence authorizations specify (though not necessarily by name) individual targets. The idea here was that if there were particular suspected terrorists (for instance) being monitored overseas, it would be fine to keep monitoring their communications if they began talking with Americans without pausing to get a full-blown warrant — but you didn’t want to give NSA carte blanche to just indiscriminately sweep in traffic between the U.S. and anyone abroad. The position paper included in these documents is more explicit than the others that I’ve seen about the motive for objecting to the bulk collection amendment. Which was, predictably, that they wanted to do bulk collection:

  • It also would prevent the intelligence community from conducting the types of intelligence collection necessary to track terrorits and develop new targets.
  • For example, this amendment could prevent the intelligence community from targeting a particular group of buildings or a geographic area abroad to collect foreign intelligence prior to operations by our armed forces.

So to be clear: Contra the rhetoric we heard at the time, the concern was not simply that NSA would be able to keep monitoring a suspected terrorist when he began calling up Americans. It was to permit the “targeting” of entire regions, scooping all communications between the United States and the chosen area.

One other exchange at least raises an eyebrow.  If you were following the battle in Congress at the time, you may recall that there was a period when the stopgap Protect America Act had expired — though surveillance authorized pursuant to the law could continue for many months — and before Congress approved the FAA. A week into that period, on February 22, 2008, the attorney general and director of national intelligence sent a letter warning Congress that they were now losing intelligence because providers were refusing to comply with new requests under existing PAA authorizations. A day later, they had to roll that back, and some of the correspondence from the EFF FOIA record makes clear that there was an issue with a single recalcitrant provider who decided to go along shortly after the letter was sent.

But there’s another wrinkle. A week prior to this, just before the PAA was set to expire, Jeremy Bash, the chief counsel for the House Permanent Select Committee on Intelligence, sent an email to “Ken and Ben,” about a recent press conference call. It’s clear from context that he’s writing to Assistant Attorney General Kenneth Wainstein and General Counsel for the Director of National Intelligence Ben Powell about this press call, where both men fairly clearly suggest that telecoms are balking for fear that they’ll no longer be immune from liability for participation in PAA surveillance after the statute lapses. Bash wants to confirm whether they really said that “private sector entities have refused to comply with PAA certifications because they were concerned that the law was temporary.” In particular, he wants to know whether this is actually true, because “the briefs I read provided a very different rationale.”  In other words, Bash — who we know was cleared for the most sensitive information about NSA surveillance — was aware of some service providers being reluctant to comply with “new taskings” under the law, but not because of the looming expiration of the statute. One of his correspondents — whether Wainstein or Powell is unclear — shoots back denying having said any such thing (read the transcript yourself) and concluding with a terse:

Not addressing what is in fact the situation on both those issues (compliance and threat to halt) on this email.

In other words, the actual compliance issues they were encountering would have to be discussed over a more secure channel. If the issue wasn’t the expiration, though, what would the issue have been? The obvious alternative possibility is that NSA (or another agency) was attempting to get them to carry out surveillance that they thought might fall outside the scope of either the PAA or a particular authorization. Given how sweeping these were, that should certainly give us pause. It should also raise some questions as to whether, even before that one holdout fell into compliance, the warning letter from the AG and the DNI was misleading. Was there really ever a “gap” resulting from the statute’s sunset, or was it a matter of telecoms balking at an attempt by the intelligence community to stretch the bounds of their legal authority? The latter would certainly fit a pattern we saw again and again under the Bush administration: break the law, inducing a legal crisis, then threaten bloody mayhem if the unlawful program is forced to abruptly halt — at which point a nervous Congress grants its blessing.

Who Will Protect the Women?

As I mentioned here yesterday:

[W]hen some people in Washington hear that nation-building in Afghanistan is not a precondition to making America safer, or that prolonging our presence undermines America’s security, the argument for remaining then shifts to preserving the security and human rights of the people of Afghanistan.

For example, Sen. Barbara Mikulski, (D-MD), a member of the Appropriations Subcommittee on Foreign Aid and Dean of the Senate Women, said last April, “The United States should do everything it can to encourage Afghanistan to respect the basic rights and welfare of women and children.”

But Malalai Joya, an Afghan woman elected to her country’s Parliament, says in yesterday’s Mercury News (via GG):

As an Afghan woman who was elected to Parliament, I am in the United States to ask President Barack Obama to immediately end the occupation of my country.

Eight years ago, women’s rights were used as one of the excuses to start this war. But today, Afghanistan is still facing a women’s rights catastrophe. Life for most Afghan women resembles a type of hell that is never reflected in the Western mainstream media.

In 2001, the U.S. helped return to power the worst misogynist criminals, such as the Northern Alliance warlords and druglords. These men ought to be considered a photocopy of the Taliban. The only difference is that the Northern Alliance warlords wear suits and ties and cover their faces with the mask of democracy while they occupy government positions. But they are responsible for much of the disaster today in Afghanistan, thanks to the U.S. support they enjoy.

Gitmo Prisoners to NY for Trial

Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial.  Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty. 

Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy.  Actually, no.  Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission.  Thus, the Bush framework essentially remains in place.  The Executive will decide on a case-by-case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.

By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/imprisonment; (2) treatment (including interrogation practices); and (3) trial issues.  Today’s announcement concerns trials. 

If there is to be a trial for persons accused of terrorism, it ought to be in civilian court.  Courts martial are for persons actually in the U.S. military (the Fort Hood shooter).  Military “commissions” are a hybrid that is nowhere mentioned in the Constitution.  It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there.  Even the former Gitmo prosecutor has voiced his objections to the system!

Bin Laden and his cohorts murdered some 3,000 people on 9/11.  It is lamentable that they did not all go down fighting at Tora Bora.  But we do have to have  policies in place for captures.  Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.

For additional Cato work on this subject, go here and here.

A Lesson for Young Journalists, Courtesy of Justice Kennedy

A high school newspaper in Manhattan recently added a new and prestigious editor to its staff: Supreme Court Justice Anthony Kennedy.  Adam Liptak of the New York Times reports:

It turns out that Justice Anthony M. Kennedy, widely regarded as one of the court’s most vigilant defenders of First Amendment values, had provided the newspaper, The Daltonian, with a lesson about journalistic independence. Justice Kennedy’s office had insisted on approving any article about a talk he gave to an assembly of Dalton high school students on Oct. 28.

Kathleen Arberg, the court’s public information officer, said Justice Kennedy’s office had made the request to make sure the quotations attributed to him were accurate.

The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.

I’m all for being tidy – and, for all his faults, Kennedy has indeed been friendly to the First Amendment (if not to student speech rights in the “Bong Hits for Jesus” case, Morse v. Frederick) – but public figures don’t usually get to change a story to “better reflect” the intent of their words.

…Frank D. LoMonte, the executive director of the Student Press Law Center, questioned the school’s approach. “Obviously, in the professional world, it would be a nonstarter if a source demanded prior approval of coverage of a speech,” he said. Even at a high school publication, Mr. LoMonte said, the request for prepublication review sent the wrong message and failed to appreciate the sophistication of high school seniors.

While this is hardly a major scandal – and it’s not unusual for justices to exclude the press entirely from public appearances – Kennedy’s use of a judicial editor’s pen does support the general feeling that students don’t always get a fair shake when it comes to their constitutional rights. As I said about an unrelated case in which Cato filed a brief last week (quoting the landmark Tinker case), students shouldn’t have to “shed their constitutional rights to freedom of speech… at the schoolhouse gate” – especially when a man charged with protecting those rights comes to talk to them about the importance of law and liberty.

H/T: Jonathan Blanks